1. Appellate Practice

2. Appellate Practice
Overseeing Appellate Litigation:
The GCs Guide
PRESENTED BY
Doug Phillips/Roderick Walston/Kira Klatchko

3. Appellate Practice
Appeals are unique animals....
•The process is unfamiliar: we aren’t usually
disputing the facts, and we cannot alter those
that surfaced at trial
•The evidence is already in
•Most of the time you already have a winner
and a loser

4. Appellate Practice
Appeals are unique animals....
•The appellate court is not a factfinder
•Trial is about proof – appeal is about error
•It isn’t enough to show error – error must be
prejudicial

5. Appellate Practice
Appellate Courts, Like Trial Courts, Have a
Duty to Preserve Ethical Standards of Practice
•But, Appellate Courts Have a Larger Role
 Discouraging bad behavior at trial
 Preventing bad behavior on appeal
 Preventing similar problems for other litigants

6. Appellate Practice
Appellate Decisions May Have Far-
Reaching and Long-Lasting Consequences
•Published opinions may be forever
•Public censure and media exposure is likely
•Adverse consequence to your client and other
clients in the same field

7. Appellate Practice
What does this mean for a GC?
•Reviewing appellate work requires a different
mindset
 How do we assess chances of winning?
 How do we know if our case will have a long-term
impact/potential for publication?
 How important is this issue to our case? Our client?
Our other clients?
 How do we review counsel’s work, and how much
should it cost?

8. Appellate Practice
How do we assess chances of
winning?
•Ask the following:
 Is this an appeal from a final judgment/order?
 Is this a writ or interlocutory appeal?

9. Appellate Practice
How do we assess chances of
winning?
•Is this an appeal from a final judgment/order?
 Are you the Appellant or the Respondent?
 Appeals are usually unsuccessful
• Of the 10,975 written opinions issued by California’s
intermediate appellate courts during fiscal year 2004-
2005:
 9,151 were affirmances,
 1,198 were reversals,
 and 262 were dismissed outright

10. Appellate Practice
How do we assess chances of
winning?
•Is this an appeal from a final judgment/order?
 Appeals are usually unsuccessful
• Out of the 5,410 Petitions for Review filed in the
California Supreme Court during fiscal year 2004-2005:
 The Court issued only 125 written opinions

11. Appellate Practice
How do we assess chances of
winning?
•Is this an appeal from a final judgment/order?
 Appeals are usually unsuccessful
• The trial court is affirmed in more than 85% of civil cases
in California appellate courts
• Most reversals occur in cases where the standard of
review is de novo
• It is very difficult to obtain a reversal on appeal where
the standard of review is abuse of discretion or
substantial evidence

12. Appellate Practice
How do we assess chances of
winning?
•Is this a writ or interlocutory appeal?
 Writs and interlocutory appeals are often more
difficult to win
• Writ procedure is arcane and requires a large amount of
work in a short amount of time
 Extraordinary writs are successful less than 8% of the time in
California Courts
• Interlocutory appeals are strictly limited in both state and
federal courts
 Most frequently come up with injunctive relief

13. Appellate Practice
How do we assess chances of
winning?
•Is this a writ or interlocutory appeal?
 Writs and interlocutory appeals are often more
difficult to win
• Writs and interlocutory appeals almost always involve
the issue of stay
 To stay or not to stay, to post a bond or not to post a bond, those
are the infernal questions you will be confronted with
 Appellate courts will look harshly upon litigants who file
unmeritorious writs or interlocutory appeals in order to hold up
trial court proceedings

14. Appellate Practice
How do we assess chances of
winning?
•How important is this issue, and what is the
standard of review?
 Will you have an opportunity to contest the issue
at a later time?
• Consider waiting, you may not have a choice
 Is the issue outcome determinative?
• Are you contesting error or prejudicial error?
 Is this a dispute over law or over fact?

15. Appellate Practice
The big picture
•How do we know if our case will have a long-
term impact/potential for publication?
•How important is this issue to our case? Our
client? Our other clients?
 Is this an issue of law that impacts a large number of
litigants/potential litigants?
 How much money is at stake?
 Are there other published cases on the topic?
 Do the courts agree on the law?
 What do interest groups say? Are they watching your case?

16. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•When should we engage appellate counsel?
 Early in the litigation if you expect an appeal
 Why? Appellate counsel is looking for error, and
can advise on how to preserve it in the record.

17. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What is appellate counsel looking for?
 Error on the part of the trial judge, error on the
part of the opposing counsel/party, error on the
part of the our litigators.
• Litigators are disputing facts, making motions, fighting
about jury instructions and discovery – appellate counsel
should be preserving the record on appeal – if something
isn’t in the record then it doesn’t exist on appeal.

18. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What is appellate counsel looking for?
 How to avoid waiver on appeal
• Issues not raised at trial are almost always waived on
appeal
 Deadlines
• Appellate timelines and deadlines are markedly different
from those at trial
 In Federal practice, deadlines are more straightforward than in
California, where they can be difficult to calculate (the NOA is
jurisdictional!)

19. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
 Deadlines:
• When to file the Notice of Appeal or when to file the
Petition for Writ
• In California, when to designate a record
• The anticipated briefing schedule
 Will there be a mediation?
 Will there be oral argument?
 Are there special rules in the Circuit/District you’re in

20. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
 Issues of Merit:
• What error is alleged?
• Should the error be raised by writ or appeal, or both?
• What is the standard of review?
• What are your chances for success?

21. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
 Are you an interested non-party
• Do you represent an interest group impacted by a
recently published decision?
 Should you seek depublication?
• Are you interested in a case currently being considered
by an appellate court?
 Should you write an amicus letter/amicus brief?

22. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•What should appellate counsel tell you?
 Cost
• Counsel should prepare a budget that includes all
relevant deadlines, expected cost of record preparation,
research, briefing, oral argument, and related motions
for judicial notice

23. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•How frequently should you expect an update?
 Appeal: When the Notice of Appeal is filed, when
the record is designated, when the mediation is
set, when the briefing schedule is set, prior to
briefs being filed.
• In the 9th Circuit, the time between NOA and Opinion
may exceed 2 years.
• In California, dispensation times may vary, but average
between 360-540 days.

24. Appellate Practice
How do we review counsel’s work,
and how much should it cost?
•How frequently should you expect an update?
 Writ: Prior to the Petition being filed, when/if an
Answer/Response is filed, when/if the court orders
argument, when the court issues its opinion or
postcard rejection
• Writs are resolved quickly, usually between 1 week and 3
months in California courts.

25. Appellate Practice
Overseeing an appeal: The Process
Record
Preparation
Conflicts and
other
preliminary
forms
Settlement
conference
procedure
Motions
Briefing
Oral Argument
Opinion
Petition for
Rehearing,
Petition for
Review
(Depublication
Request)
Remittitur
Attorney Fees
Motion
Notice of Appeal
from Final
Judgment or
Order

26. Appellate Practice
Overseeing a writ: The Process
Record
Preparation
Writ
Petition/Stay
Preliminary
Opposition
Court Order
(denial, Palma,
alternative/OSC)
Additional
Briefing
OSC Hearing
Opinion
Petition for
Review
(Depublication
Request)
Filing/Issuance
of Writ
Adverse order

27. Appellate Practice
Miscellaneous tips
•Don’t assume appellate and trial counsel should
be the same person/same firm
 Appellate attorneys view the facts in a different light
and are better able to realistically assess the chances
on appeal
•Don’t assume trial counsel will inform you of
appellate deadlines
 Appellate deadlines differ from trial deadlines and are
often jurisdictional, if you are interested in an appeal
let counsel know as soon as possible

28. Appellate Practice
Miscellaneous Tips
•Though appellate costs can be high, you
should question billing by more than two
attorneys
 Appellate Briefs and Writ Petitions are deserving of
craftsmanship, they should not be compiled by 10
attorneys each of whom drafts one section
• If your invoice lists more than 2 appellate attorneys, ask
which one is actually responsible for writing your briefs

29. Appellate Practice
Miscellaneous Tips
•The attorney who drafts the brief/petition
should argue the case
 The person who drafts the main brief/petition is
most knowledgeable about the appeal
• The lead drafter is best suited to argue the case before
the Court, and will need less time to prepare for oral
argument than someone who is new to the case– that
will translate into a direct cost-savings to the client

30. Appellate Practice
Concluding Comments
•Managing an appeal is simple if you
understand the appellate process and your
chances of success
 Ask questions early and often
 Demand a budget and a timeline
 If you have particular concerns talk directly with
the drafter